[1] The requirements for proposing an adjudication on the constitutionality of a law

[2] The case holding that in light of all the circumstances, such as the purport of the amendment system of Article 270 (2) of the former Company Reorganization Act, which provides that "any person who has consented to the previous plan and fails to attend the meeting of interested parties to resolve on the amendment plan, shall be deemed to have consented to the amendment plan," it does not violate the Constitution

[1] Article 107 (1) of the Constitution, Article 41 (1) of the Constitutional Court Act / [2] Article 270 (2) of the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005) (see current Article 282 (2) and (4) 1 of the Debtor Rehabilitation and Bankruptcy Act), Articles 11, 23 (1), and 37 (2) of the Constitution

[1] Supreme Court Order 97Kao24 dated April 10, 1998 (Gong1998Sang, 1271)

Masung Unemployment Co., Ltd. and two others (Attorneys Cho Jae-won et al., Counsel for the plaintiff-appellant)

The applicant shall dismiss the application of the applicant mining unemployment company and all applications filed by the applicant and the mining industry corporation shall be dismissed.

1. As to an applicant’s application for an adjudication on constitutionality of a mining unemployment corporation

In order for a court to seek an adjudication on the constitutionality of a law, the pertinent law should be the premise for a trial on the constitutionality of a law. Here, the term "the premise of a trial" means the case where a specific case is pending in a court, and the law at issue is applicable to a trial on the relevant litigation case, and where a court in charge of the relevant case makes another judgment depending on whether the law is in violation of the Constitution (see Supreme Court Order 97Kao24, Apr. 10, 1998, etc.).

As a public interest creditor, a mining unemployment company (hereinafter “mining unemployment”) is, in principle, not subject to the effect of the alteration of a right by the instant alteration plan, and thus does not constitute a person having a legal interest in the instant alteration plan, and accordingly, an appeal, such as an immediate appeal, against the decision on authorization of the alteration plan, may be dismissed. Therefore, the determination does not change according to the unconstitutional decision under the proviso of Article 270(2) of the Company Reorganization Act.

Therefore, it is unlawful to make a request for adjudication on the unconstitutionality of the opticalty business of this case due to lack of the premise of judgment.

2. As to the application for an adjudication on the unconstitutionality of a mining industry corporation

A. Article 270(2) of the Company Reorganization Act provides that, upon receipt of an application for change of a reorganization plan which is deemed to have an unfavorable effect on the reorganization creditors, etc., the procedure shall apply mutatis mutandis to the case where the reorganization plan is submitted, and that, “a person who consented to the previous plan and fails to attend the meeting of interested persons to resolve on the amendment plan shall be deemed to have consented to the amendment plan (hereinafter “instant deemed provision”).

B. The amendment system of reorganization programs contributes to the public interest purpose of the company reorganization system, and it is desirable to abolish reorganization proceedings even where there is a possibility of reorganization if the amendment of the plan is possible, due to an error in forecast or sudden change in economic circumstances after the approval of the reorganization program. Thus, it is not desirable in light of social and economic aspects as well as interested parties’ intent. Thus, the amendment system permits the amendment of the reorganization program only where there is an inevitable reason, i.e., where the change of circumstance that the plan would have been prepared naturally if the original plan would have been anticipated at the time of approval, thereby allowing the amendment of the reorganization program. The amendment system contributes to the public interest purpose of the company reorganization system, including maintaining the business by adjusting the interested parties’ understanding of the company which faces financial distress but might have economically pit, and the deemed provision of this case is somewhat simplification of the procedure for resolution of the amendment plan within reasonable scope, and thus, it is more likely that the previous person who consented to the reorganization program would have been able to maintain and rectify the existing reorganization plan ex officio, unless there are any unavoidable reasons for the amendment of the reorganization plan.

C. Thus, the deemed provision of this case cannot be deemed to violate Article 23(1) of the Constitution of the Republic of Korea or Article 11 of the Constitution of the Republic of Korea which provides for the right to equality, or Article 37(2) of the Constitution which provides for the limitation of fundamental rights.

3. Conclusion

Therefore, the application for a request for a judgment on the unconstitutionality of a mining-faith business of this case is unlawful because it lacks the premise, and thus, it is dismissed. The application for each of the applications for a judgment on the unconstitutionality of a mining industry of this case under the premise that the deemed provision of this case is unconstitutional is without merit. It is so decided as per Disposition by the assent of all participating

Justices Park Si-hwan (Presiding Justice)